2012Do9119 Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Rape, etc.);

Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

Rape, etc.) Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse

Rape, etc.

A

Defendant

Attorney U (Korean Branch of Law)

Daegu High Court Decision 2012Do227 Decided July 12, 2012

September 27, 2012

The judgment below is reversed, and the case is remanded to the Daegu High Court.

The grounds of appeal are examined.

1. As to the attempted indecent act by deceptive scheme or by force (as to the facts charged, Nos. 1, 3, 4, 5, 8 of the crime sight table in paragraph (2)

A. According to the reasoning of the judgment below, the court below held that when the defendant committed an indecent act against the victims by deceiving them as police at the time of the crime in the above crime Nos. 1, 3, 4, 5, and 8, the defendant already started the commission of indecent act by deceptive means or force when he had the victims to board a vehicle by deceiving them with the intention of indecent act against the victims at the time of the crime in light of the fact that the defendant asked female students at the age of 13 through 15 who are 15 who are 13 and 15 who are 13 and 15 who are going to go to go to move to a car, the court below held that the above facts charged in each of the above crimes constituted a crime of violating the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (hereinafter "Sexual Crimes Punishment Act") and the Act on the Protection of Children and Juveniles against Sexual Abuse (hereinafter "Child and Juveniles Protection Act").

B. However, it is difficult to accept the above determination by the court below for the following reasons.

(1) In the crime of indecent act through a deceptive scheme under the Sexual Violence Punishment Act and the Child and Juvenile Sex Protection Act, the term "manner" means that an offender misleads the other party with the intent to commit an indecent act, causes a misunderstanding, misunderstanding, perception, or site, and achieves the purpose of indecent act by taking advantage of the other party's physical condition. Here, the term "a site" refers to misunderstanding, misunderstanding, misunderstanding, and sites for an indecent act itself, such as in the case of an indecent act by taking treatment or religious rites, or in the case of an indecent act by taking advantage of the other party's physical condition. It does not mean misunderstanding, misunderstanding, and site for other conditions that are not recognized as indivisible as above (see, e.g., Supreme Court Decision 201Do5074, Dec. 24, 2001).

According to the records, we affirm the judgment of the court below in this case up to the fact that the defendant had the intention to conduct an indecent act when the victim was arrested or attempted to board a vehicle by deceiving the victim as a police officer, and that the victim was about to board a vehicle for the purpose of realizing the crime. However, it cannot be viewed that there is an indivisible relationship between the act on board or attempting to board a vehicle and the indecent act itself, and the act on indecent act itself does not constitute an indivisible relation. In addition, the victim did not have any error or awareness about the indecent act itself by itself on the ground that the defendant attempted to board a vehicle.

It cannot be deemed that the defendant's act was commenced. Therefore, if the defendant's act was prosecuted due to an indecent act by fraudulent means, it is doubtful whether there was the commencement of the crime.

(2) Meanwhile, in relation to the crime of indecent act by force under the Sexual Violence Punishment Act and the Act on the Protection of Children and Juveniles from Sexual Abuse, the term "compact" refers to the sufficient force to suppress the victim's free will, and it is possible to use the status or status of the offender as well as violence and intimidation, and whether the defendant committed an indecent act by "compact" should be determined by comprehensively taking into account all the circumstances, such as the content and degree of force exercised, the status and status of the offender, the type of the offender, the age of the offender, the relationship between the offender and the victim, the circumstances leading to the act, the specific form of the act, and the circumstances at the time of the crime (see, e.g., Supreme Court Decision 2007Do4818, Aug. 23, 2007). Since the part acknowledged by the court below as the victim of the crime of indecent act by force and the Act on the Punishment of Sexual Violence and the Act on the Protection of Juveniles from Sexual Abuse cannot be viewed as one's own ability or the victim's own ability.

However, in the case of an indecent act by such force, in order to have the commencement of such act, the act of exercising power to the extent of suppressing the victim’s free will should be commenced.

However, according to the reasoning of the judgment below and the record, in the case of the crime No. 1 in the annexed crime No. 1 in the annexed crime list, the defendant is the police, and the victim called the victim E to get on and off the vehicle, and the victim was forced to get on the vehicle of the defendant, and there is no circumstance to deem that there was the pressure, etc. of the defendant in the process, and the victim left the vehicle of about 1 to 2 minutes after getting on the vehicle, and there seems to have been no act related to the behavior or indecent act that is likely to be hot to the victim in the vehicle. In addition, even in the case of the crime No. 3, 4, 5, and 8 in the above crime No. 12 to 15 of the crime list, the defendant requested the victim to get on the vehicle of the victim to get on the vehicle of the victim E, and the victim was forced to get on the vehicle of the victim, and the victim was forced to get on the vehicle of the victim, and there was no such an indecent act or indecent act.

(3) Therefore, the lower court should have deliberated and determined whether the charges on the crime of violating the Sexual Violence Punishment Act and the crime of violating the Child and Juvenile Sex Protection Act due to each of the above attempted indecent acts were charged against either an indecent act by deceptive means or by force, and then, should have deliberated and determined whether the commission of the crime by deceptive means or by force could have been initiated. However, the lower court erred by misapprehending the relevant legal doctrine or failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

2. As to the injury resulting from indecent act by compulsion (Article 1)

Examining the evidence duly admitted by the first instance court, which maintained the reasoning of the judgment below, the court below was just in finding the Defendant guilty of the injury caused by indecent act among the facts charged in this case on the grounds stated in its reasoning, and contrary to what is alleged in the grounds of appeal, there were no errors of misapprehending the principle of free evaluation of evidence against logical and empirical rules,

3. As to the allegation in the grounds of appeal regarding mental disorder

Examining the reasoning of the judgment below in light of the records, it is just for the court below to reject the defendant's argument about the mental and physical disorder on the grounds as stated in its reasoning, and there is no error of law

4. Scope of reversal

As seen earlier, each part of the violation of the Sexual Violence Punishment Act and the violation of the Child and Juvenile Sex Protection Act due to attempted indecent act by deceptive means or by force against the defendant should be reversed. Since the court below sentenced the defendant guilty to a single punishment in relation to concurrent crimes under the former part of Article 37 of the Criminal Act with the above reversed part, the judgment of the court below cannot avoid the whole reversal.

5. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-sik et al.